WSR 97-22-031

PROPOSED RULES

DEPARTMENT OF AGRICULTURE

[Filed October 30, 1997, 1:20 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-13-066.

Title of Rule: "Penalties"; penalty assessment for violations of chapters 16.49, 19.32, 69.04, 69.07, and 69.10 RCW.

Purpose: To establish fair, uniform and equitable means for assessing civil penalties and licensing actions for violations of chapters 16.49, 19.32, 69.04, 69.07, and 69.10 RCW.

Statutory Authority for Adoption: RCW 16.49.680, 19.32.030, 69.04.730, 69.07.020, and 69.10.055.

Statute Being Implemented: Chapters 16.49, 19.32, 69.04, 69.07, and 69.10 RCW.

Summary: The rules adopted in WAC 16-139-005 through 16-139-060 apply to violations of chapter 16.49 RCW, Custom slaughtering; chapter 19.32 RCW, Food lockers; chapter 69.04 RCW, Intrastate commerce in food, drugs, and cosmetics; chapter 69.07 RCW, Washington Food Processing Act; and chapter 69.10 RCW, Food storage warehouses. The rule consists of eight sections which include the purpose of the rule, definitions applicable to terms used in the rule, the method for calculating penalties, three penalty schedules in table form, alternatives to penalty assessment and a section on the disposition of collected penalty money.

Reasons Supporting Proposal: These regulatory actions are necessary to deter violations of food safety laws and rules, to educate persons about the consequences of such violations, and to compel compliance with food safety laws for the protection of consumers. Fair and equitable systems for penalty assessment are strongly encouraged under RCW 34.05.220(4).

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Michael J. Donovan, 2nd Floor, Department of Natural Resources Building, 1111 Washington Street, Olympia, (360) 902-1883.

Name of Proponent: Food Safety Program, Washington State Department of Agriculture, governmental.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The agency will implement the rule by applying it routinely whenever a hearing finds that penalty action is warranted. The agency intends to inform and educate the affected persons by department letter to affected parties, through information exchange at meetings and by personal contact during routine inspections of producers and processors.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: This chapter is promulgated by the director of agriculture for the purpose of establishing fair, uniform and equitable means for assessing civil penalties and licensing actions authorized under RCW 16.49.444, 19.32.060, 69.04.880, 69.07.060, 69.07.110, 69.07.150(2), 69.10.030 and 69.10.050. The rules adopted in WAC 16-139-005 through 16-139-060 apply to violations of chapter 16.49 RCW, Custom slaughtering; chapter 19.32 RCW, Food lockers; chapter 69.04 RCW, Intrastate commerce in food, drugs, and cosmetics; chapter 69.07 RCW, Washington Food Processing Act; and chapter 69.10 RCW, Food storage warehouses.

This is a rule that outlines penalties for persons, including food processors, custom meat operations, dairy manufacturing plants, food storage facilities and other parties, that are cited for violations of chapters 16.49, 16.74, 19.32, 69.04, 69.07, and 69.10 RCW and rules and regulations adopted thereunder. The procedures prescribed by the Administrative Procedure Act in applying penalties, as well as recommendations by the Attorney General's Office, compel the adoption of a rule that establishes a fair and equitable method for assessment of penalties for violations of the aforementioned statutes, rules, and regulations. This rule outlines a schedule that takes into account the number and severity of repeat violations in assessment of penalties and utilizes the firm's history and other mitigating and aggregating factors in assigning penalties.

This rule would also provide an opportunity to establish criteria for taking revocation action and includes a section on alternatives to formal action and a section on disposition of collected penalty money.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The adoption of this rule would have no economic impact on any person who complies with state food laws and rules.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The Washington State Department of Agriculture is not a listed agency in section 201.

Hearing Location: Department of Natural Resources Building, 1111 Washington Street, 2nd Floor, Room 259, Olympia, WA 98504-2560, on December 10, 1997, at 10 a.m.

Assistance for Persons with Disabilities: Contact Julie Carlson by December 3, 1997, TDD (360) 902-1996, or (360) 902-1880.

Submit Written Comments to: Michael J. Donovan, P.O. Box 42560, Olympia, WA 98504-2560, (360) 903-1883, FAX (360) 902-2087, by December 9, 1997.

Date of Intended Adoption: December 31, 1997.

October 30, 1997

Dr. Candace Jacobs

Assistant Director

PENALTIES

NEW SECTION

WAC 16-139-001 Promulgation and purpose. This chapter is promulgated by the director of agriculture for the purpose of establishing fair, uniform and equitable means for assessing civil penalties and licensing actions authorized under RCW 16.49.444, 19.32.060, 69.04.880, 69.07.060, 69.07.110, 69.07.150(2), 69.10.030 and 69.10.050. The rules adopted in WAC 16-139-005 through 16-139-060 apply to violations of chapters 16.49 RCW (Custom slaughtering), 19.32 RCW (Food lockers), 69.04 RCW (Intrastate commerce in food, drugs, and cosmetics), 69.07 RCW, (Washington Food Processing Act) and 69.10 RCW (Food storage warehouses). The director also declares:

(1) Education and technical assistance play an important role in the prevention, correction or abatement of food safety violations and are the department's preferable alternative to regulatory action. However, at times regulatory action is necessary to deter violations of food safety laws and rules, to educate persons about the consequences of such violations, and to compel compliance with food safety laws for the protection of consumers. The department initiates such actions when educational measures, technical assistance, warning letters, compliance agreements or other remedial measures fail to achieve compliance; and

(2) Any regulatory action taken by the department against any person who violates the provisions of chapters 16.49, 19.32, 69.04, 69.07 and 69.10 RCW, and rules adopted thereunder shall be commensurate with the seriousness of the violation under the circumstances; and

(3) Each person shall be treated fairly in accordance with the rules set forth in this chapter.

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NEW SECTION

WAC 16-139-005 Definitions. (1) Definitions:

(a) "Violation" means commission of an act or acts prohibited by chapter 16.49, 69.04, 69.07 or 69.10 RCW, including rules adopted under them.

(b) "Prior violation" means the same or a similar violation committed by a person within the previous three years.

(c) "Critical violation" means a violation resulting in food adulteration that could cause injury or illness in consumers or that has the potential to contribute to conditions resulting in such adulteration.

(d) "Significant violation" means a violation resulting in food adulteration or food being prepared under unsanitary conditions not apparently related to a public health danger or that has the potential to contribute to conditions resulting in such adulteration and if not corrected could lead to a critical violation.

(e) "Economic violation" means a violation which affects the purchaser economically, either due to misbranding or adulteration where inferior or substandard quality product is substituted, by hiding defects or by false or misleading labeling.

(f) "Other violation" means a violation of chapter 16.49, 69.04, 69.07 or 69.10 RCW, not covered under the penalty schedules in WAC 16-139-020 or 16-139-030, including, but not limited to, violation of embargo, mutilation of embargo notices, sale of food from an unlicensed processor, operating without a required license, refusal of inspection or access, interference with the director or the director's designee, or economic and labeling violations.

(g) "Same," with respect to violations, means an identical recurrence or an exact repetition of a previous violation, or a continuation of a previous violation.

(h) "Similar," with respect to violations, means related in appearance or nature; alike though not identical.

(i) "Knowingly" means that the alleged violator had previous warning, knew or reasonably should have known that a condition could result in adverse effects or that a violation would occur.

(j) "Potential," with respect to violations, means that a violation may result in food adulteration or a risk to health or that the violation supports conditions that may contribute to food adulteration or a risk to health.

(k) "Probable," with respect to violations, means that a violation is reasonably likely to result in food adulteration or a risk to health.

(2) Additional definitions for terms used in this chapter are found in the following provisions of law:

(a) Washington Food, Drug and Cosmetic Act, chapter 69.04 RCW.

(b) Washington Food Processing Act, chapter 69.07 RCW.

(c) Current Good Manufacturing Practice in Manufacturing, Packing or Holding Human Food, Title 21, Code of Federal Regulations, Chapter 1, Subchapter B, Part 110.

(d) Food storage warehouses, chapter 69.10 RCW.

(e) Custom Slaughter Act, chapter 16.49 RCW.

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NEW SECTION

WAC 16-139-010 Calculation of penalty. (1) Median penalty selection. In the disposition of administrative cases, the department shall determine the penalty as follows:

(a) The department shall first determine the correct penalty assignment schedule table listed in either WAC 16-139-020 (critical violations), WAC 16-139-030 (significant violations), or WAC 16-139-040 (economic and other violations), that is applied based on the type of violation alleged.

(b) The department shall then determine the penalty range based on whether there have been prior violations in last three years.

(c) The department shall then determine:

(i) The probability of a violation causing a risk to health under WAC 16-139-020 (critical violations); or

(ii) The probability of a violation resulting in food adulteration under WAC 16-139-030 (significant violations); or

(iii) Whether the violation was knowing under WAC 16-139-040 (economic and other violations).

(d) The scheduled penalty is then applied unless a proportionate adjustment is made. In no case will a penalty less than the minimum penalty listed for the violation be applied.

(2) Proportionate adjustment of median penalty. The department reserves the right to proportionately increase the civil penalty and proportionately decrease the licensing action under certain circumstances. Such circumstances include situations where licensing action as a deterrent is ineffective and includes but is not limited to violations by persons who are not licensed. Likewise, the department reserves the right to proportionately decrease the civil penalty and proportionately increase the licensing action when circumstances in a particular case demonstrate the ineffectiveness of a civil penalty action as a deterrent.

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NEW SECTION

WAC 16-139-020 Penalty assignment schedule--Critical violations.

LEVEL DEGREE OF RISK PENALTY

TO HEALTH

1st Violation in a 3-year period A. POTENTIAL $200 and 2-day license suspension

B. PROBABLE $1000 and 7-day license suspension

2nd Violation in a 3-year period A. POTENTIAL $400 and 4-day license suspension

B. PROBABLE $1000 and 14-day license suspension

3rd Violation in a 3-year period A. POTENTIAL $800 and 8-day license suspension

B. PROBABLE $1000 and 30-day license suspension

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NEW SECTION

WAC 16-139-030 Penalty assignment schedule--Significant violations.

LEVEL POTENTIAL FOR FOOD PENALTY

ADULTERATION

1st Violation in a 3-year period A. POTENTIAL $100 and 1-day license suspension

B. PROBABLE $200 and 2-day license suspension

2nd Violation in a 3-year period A. POTENTIAL $200 and 2-day license suspension

B. PROBABLE $400 and 4-day license suspension

3rd Violation in a 3-year period A. POTENTIAL $400 and 4-day license suspension

B. PROBABLE $800 and 8-day license suspension

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NEW SECTION

WAC 16-139-040 Penalty assignment schedule--Economic and other violations of chapters 16.49, 19.32, 69.04, 69.07, and 69.10 RCW.

LEVEL DEGREE OF KNOWLEDGE OF PENALTY

VIOLATION

1st Violation in a 3-year period A. UNKNOWING $100 and 1-day license suspension

B. KNOWING $200 and 2-day license suspension

2nd Violation in a 3-year period A. UNKNOWING $200 and 2-day license suspension

B. KNOWING $400 and 4-day license suspension

3rd Violation in a 3-year period A. UNKNOWING $300 and 3-day license suspension

B. KNOWING $1000 and 10-day license suspension

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NEW SECTION

WAC 16-139-050 Other dispositions of alleged violations. Nothing herein shall prevent the department from:

(1) Choosing not to pursue a case administratively.

(2) Issuing a notice of correction in lieu of pursuing administrative action.

(3) Negotiating settlement(s) of cases on such terms and for such reasons as it deems appropriate. Prior violation(s) covered by a prior settlement agreement may be used by the department for the purpose of determining the appropriate penalty for the current alleged violation(s) if not prohibited by the agreement.

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NEW SECTION

WAC 16-139-060 Disposition of collected penalty money. Money collected by the department as civil penalties for violation of chapters 16.49, 69.04, and 69.10 RCW shall be directed to the state general fund. Money collected by the department as civil penalties for violations of chapter 69.07 RCW shall be utilized for food processing industry technical advisement and assistance in meeting food safety regulations and requirements and food safety education and training of food safety program personnel.